Friday, September 30, 2016

Notes from Sarah and an Event Recap

Good morning, Readers! It's been quite awhile since I (Sarah) have written here. I started blogging on constitutional law and civil rights in a separate blog for a legal blogging class at law school, and have continued to write there. But the Intermediate Scrutiny team still wants to write together, so we're going to keep writing here, writing on separate blogs, and sometimes post things to both blogs.

I've started attending a lot of events—conferences, symposia, talks—and I'm going to start writing about them on these blogs, as well as the cases or issues that they inspire me to research and read and write more about.

Once I was at an Eleventh Circuit oral argument, and I had to sit still and look composed and professional. But I was so excited about what was happening, so I channeled that energy into my notebook. I took notes on the arguments, of course, but I also had all-caps, exclamation-point-enhanced declarations like, "FREEDOM!!!!!" "FIRST AMENDENT!!!!!" "YES! AMERICA! FIREWORKS AND EAGLES!!!!!!!!" I imagine something like that prompted me to write, "LIBERTY and LIFE!" in the middle of a notebook page. Another page has "CONSTITUTION" in huge letters and underlined, with no other context, other than the fact that constitutional rights was one of the themes of the day.

Luckily, people tweeted many of the noteworthy facts, statistics, and stories, and memorable messages from the day, with the hashtag #RacePovertyJustice. I tried to do this, but found I couldn't keep up with everything being said quickly enough to tweet it, so I just took my handwritten scribbly notes. I did retweet a few things, and appreciated that others were documenting the event. It's definitely worth checking out that hashtag to see what others recorded. I also found a good recap of the first panel discussion here. According to SCHR's Facebook, video of the event will be online at some point, and when that happens, I'll update this post with a link.

I walked out of the auditorium, after Stephen Bright's closing remarks, feeling full of energy and optimism. I had just spent the last several hours learning about some awful things happening in my country (and in particular, in my state), but I had also heard from and sat among a room full of people dedicated to changing that. Furthermore, in learning about these problems, I was getting an idea of why they happen and how I, as a lawyer and generally as a member of the community, can change things.

A few moments later, however, another attendee expressed different feelings. "Things are really terrible, aren't they?" he said, and repeated a statistic cited in the first panel, "Law and Policy Solutions to End the Criminalization of Race and Poverty." Dr. Ashley Nellis of The Sentencing Project had pointed out that, at the current rate, it would take eighty-eight years to get incarceration rates down to the same level as 1980. Referencing this, my conversation partner said that things seemed "hopeless." It struck me immediately that his wasn't an irrational response, even though it was so different from my own. I had skipped over despair and focused, at least emotionally, on the "What You Can Do" part of the symposium's title.

I took about thirteen pages of notes (and not all were gibberish or all-caps constitutional rights buzzwords), noting issues, news stories, and cases I wanted to research and write about here. That would take months and several posts. For now, I just wanted to provide some links to content and short summaries of a few things that stood out to me from that day. I wanted to do this before September 30th so that you, readers, have a chance to participate in the conversation if you'd like. Today, September 30th, at 2PM EST, Southern Center for Human Rights and the panelists are participating in a Twitter chat. Log onto Twitter at that time and follow the hashtag #RacePovertyJustice to be part of the conversation (or just follow along.).

The symposium included coverage of problems with the criminal justice system resulting in increasing incarceration rates, particularly for nonviolent offenses—something that disproportionately affects people of color and poor people. This can begin with what is defined as a crime in the first place. (I'd love to do some future posts on quality of life crimes.) Some examples mentioned were being on the sidewalk with no "valid" reason or sleeping in public. Speakers described disparities in how defendants are charged; for example, the Honorable Bernice B. Donald of the Sixth Circuit Court of Appeals provided an account of a black defendant being charged with eight counts for illegally possessing eight weapons, and later, a white defendant being charged with one count for illegally possessing eight weapons. Sentencing disparities were discussed. Treatment of people in prison were discussed; Tamika Middleton mentioned another issue I'd like to write about on this blog someday, shackling pregnant prisoners.

The topic of criminalizing poverty is one I'd like to cover much more on this blog. The Supreme Court held in Bearden v. Georgia that it is unconstitutional to imprison people for being unable to pay fines; people can only be imprisoned for willfully refusing to pay. But what some are referring to as "modern day debtors' prisons" exist. The SCHR has a summary here. In my Due Process seminar last semester, we read about such practices in Tennessee. According to the allegations of this complaint, people who had committed minor offenses (like traffic offenses) and were unable to pay the fine were placed on supervised probation by private probation companies. The private probation companies charge a supervision fee. So people who were already unable to pay, it would seem, were being punished by being assessed more fees. The companies allegedly would not provide to people forms to fill out to demonstrate that they were indigent, and when people missed a payment—because they were unable to, not because they were willfully refusing to pay—they were arrested and imprisoned.

At the symposium, I learned about similar practices in Georgia. Atteeyah Hollie provided one account (and at the moment, I haven't found a case or news story or anything to link to for more information, so if anyone reading this has one, please let me know!) of a man assigned to supervised probation, who in addition to paying off whatever the original fine was, had to pay a supervision fee of $44/month. He needed surgery, and contacted the private probation company to tell them that, because of his surgery, he was not going to have enough money to pay the $44 the next time it was due. A warrant for his arrest was issued. The police came to his house at four in the morning (!) to arrest him. He had children; here my notes just say "DFCS!" (This is why I wanted to find a news story; to confirm that the children went into foster care, in addition to their father going to jail, all over a fee that he was unable to pay. Not willfully refusing to pay.).

In his closing remarks, Stephen Bright mentioned a woman who was eight months pregnant, with a difficult pregnancy, sent to jail for being unable to pay fees. Google led me to news reports about Kiana Adams. This Daily Report article describes what happened to her; it seems she might have given birth in jail had SCHR not gotten involved. This news article states that had she given birth in jail, she likely would have been separated from her child—over traffic fines and probation supervision fees.

Private probation companies are not always involved. Sometimes a court itself will set up a system in which people go to jail for not paying a fine, even though the reason for not paying is that they are unable to do so. After hearing Walker v. City of Calhoun discussed at the conference, I will be following it. A clear summary of the facts are here; a man was cited for "pedestrian under the influence," was unable to pay the fine, and jailed. Here is the District Court's order granting the plaintiff's preliminary injunction. My notes from the conference say, "District court found for plaintiff; city appealed. Appeal pending in 11th Circuit. Important case." So I'll be following that appeal, and providing updates here. I'd like to do a thorough analysis and presentation of facts and issues, too.

We see a clear link between the criminalization of race or poverty and
the erosion of public trust. Through our investigation of the Baltimore
City Police Department, we saw how a “zero tolerance” street
enforcement strategy became a quest to produce numbers – pedestrian
stops in particular – regardless of their limited impact on solving
crime and the damage they did to community relationships. The city’s
African-American residents bore the brunt of this activity. The
Baltimore Police Department made roughly 44 percent of its stops in two
small, predominantly African-American districts that contain only 11
percent of the city’s population. One African-American man was stopped
30 times in less than four years – with none of the stops resulting in a
citation or criminal charge. Officers routinely arrested people for
loitering or trespassing if they could not provide a “valid reason” for
being on the sidewalk or standing near a public housing development.
BPD [Baltimore Police Department] condoned and encouraged this behavior.
In one instance, a shift commander emailed a template for describing
such trespassing arrests; the template provided blank fields to be
filled in with details, except that it had the words “black male”
pre-filled for the suspect description.

If you're interested in any of these topics, I encourage you to check out the Symposium Resources and the Twitter chat today at 2pm!

And thank you to the Southern Center for Human Rights for putting together such a great event!

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About This Blog

Recent law graduates highlight the fascinating, curious, bizarre, and sometimes funny topics that touch and concern constitutional law. E-mail us at intermediatescrutiny@gmail.com with questions, comments, or feedback, or to suggest topics for discussion.

About the Authors

Sarah & Bunny are recent graduates of Emory Law, tail-end Gen-Xers, and clever women of incredible verbosity. Sarah is a reformed botanist turned civil rights practitioner, and Bunny is a recovering audio engineer turned elbow-clerk for a federal judge. Both ladies have a strong interest in constitutional law–protecting it, interpreting it, and musing about it generally.